M/S Rama Phosphates Limited ... vs Joint Director
2023 Latest Caselaw 485 MP

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  IN THE HIGH COURT OF MADHYA PRADESH
                     AT I N D O R E
                           BEFORE
          HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                   DHARMADHIKARI
                              &
      HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

               ON THE 9th OF JANUARY, 2023

              WRIT PETITION No. 25422 of 2022

BETWEEN:-
M/S RAINBOW AGRI INDUSTRIES LTD. THROUGH AUTHORIZED
SIGNATORY MR. AJAY AGARWAL S/O OMPRAKASH AGARWAL 52,
FREE PRESS HOUSE 215 NARIMAN POINT MUMBAI (MAHARASHTRA)
                                                 .....PETITIONER
(SHRI LALIT KUMAR JAIN, LEARNED COUNSEL FOR THE PETITIONER)


AND
   THE JOINT DIRECTOR, DIRECTOR GENERAL OF CENTRAL EXCISE
1. INTELLIGENCE REGIONAL UNIT, GROUND FLOOR "A" WING, CGO
   COMPLEX, AB ROAD INDORE (MADHYA PRADESH)
   THE ADD. COMMISSIONER OF CUSTOMS, NEW CUSTOM HOUSE,
2.
   NEAR BALAJI TEMPLE, NEW KANDLA - 370 210
                                               .....RESPONDENTS
(SHRI PRASANNA     PRASAD,    LEARNED       COUNSEL    FOR   THE
RESPONDENS)
__________________________________________________

              WRIT PETITION No. 25420 of 2022

BETWEEN:-
M/S    RAMA   PHOSPHATES     LIMITED      THROUGH     AUTHORIZED
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SIGNATORY MR. VINOD LASOD S/O LATE SHRI LAXMILAL LASOD 20/6
K.M. STONE INDORE UJJAIN ROAD, VILLAGE RAJODA NEAR
DHARAMPURI, DISTRICT INDORE (MADHYA PRADESH)
                                                         .....PETITIONER
(BY SHRI SACHIN PARMAR, LEARNED COUNSEL FOR THE PETITIONER)

AND
   THE JOINT DIRECTOR, DIRECTOR GENERAL OF CENTRAL EXCISE
1. INTELLIGENCE REGIONAL UNIT, GROUND FLOOR "A" WING, CGO
   COMPLEX, AB ROAD INDORE (MADHYA PRADESH)
   THE ADD. COMMISSIONER OF CUSTOMS NEW CUSTOM HOUSE,
2.
   NEAR BALAJI TEMPLE, NEW KANDLA - 370 210
                                                      .....RESPONDENTS
(BY SHRI PRASANNA PRASAD,             LEARNED      COUNSEL     FOR   THE
RESPONDENTS)
__________________________________________________________
      These petitions coming on for order this day, JUSTICE

SUSHRUT ARVIND DHARMADHIKARI passed the following:

                                 ORDER

These petitions are filed seeking following reliefs :-

"Quash order number KDL/ADC/RHM/38/2021-

22 dated 31/03/2022 passed by Additional Commissioner, Custom House, Kandla (Guj.) under Section 114 (iii) of the Customs Act, 1962 under Show Cause Notice No.IV(6) INV/RUI/37/10 dated 20/01/2010 issued by the Joint Director, Director General of Central Excise Intelligence Regional Unit, Ground Floor, "A" Wing, CGO Complex, A.B. Road, Indore, ANNEXURE P-V.

Any order relief/reliefs in favour of the petitioner as this Hon'ble Court deems fit and proper."

2. Preliminary objection is raised by the learned counsel for the respondents to the effect that impugned order is appealable under Section

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128 of Customs Act, 1962 before the Commissioner.

3. Learned counsel for the respondents submitted that identical writ petition No.11973/2022 and connected writ petitions have been dismissed by this Court on the ground of availability of an efficacious alternative remedy.

4. Learned counsel for the petitioner submitted that by way of celebrated judgment of Hon'ble Apex Court in case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 wherein it is held that the alternative remedy is not a bar at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the virus of the Act is challenged.

5. In the present case, personal hearing was not granted to the petitioner before passing the impugned order, even the authority without invoking Section 113 of the Customs Act, went-on to pass order under Section 114 of the Customs Act. The value of goods was not assessed or determined before passing the impugned order. In such a situation, the order passed in W.P. No.11973/2022 and connected cases are not applicable to the facts and circumstances of the present cases. The writ petitions could not be dismissed on the ground of alternative remedy.

6. On the other hand, learned counsel for the respondents has vehemently opposed the prayer and submitted that on perusal of the order-in-original No.KDL/ADC/RHM/15/2022-23 dated 16/10/2022, in para 36.3.12, it can be very well seen that personal hearing was granted

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to the petitioner before passing of the order on various occasions, therefore, contention that principle of natural justice is violated stands negated.

7. So far as delay in deciding the issue is concerned, sufficient reasons have been assigned for the same in para 36.1 on-wards.

8. Learned counsel for the respondents relied on the judgment of Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others (2014) 15 SCC 44 in which it is held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam (2017) 8 SCC 611 the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others (2016) 13 SCC 305 it is held that when there statutory appeal is provided, then the said remedy has to be availed.

9. In view of the aforesaid and also looking to the fact of availability of an efficacious alternative remedy, we do not find it proper to entertain these petitions. Petitioner would be at liberty to avail the alternative remedy in accordance with law, if so advised.

10. Petitions are therefore, dismissed.

(S.A. DHARMADHIKARI)                    (PRAKASH CHANDRA GUPTA)
                      JUDGE                           JUDGE

Aiyer*
Digitally signed by
JAGDISHAN AIYER
Date: 2023.01.10
13:33:49 +05'30'